Top BC 5 family law myths (or Misunderstandings) cause unsuspecting and unrepresented family litigants to miss out on key financial support, personal protection, and property division orders. Don’t fall victim to the top 5 BC Family Law Myths! Contact our lawyers immediately when you are separated so you don’t fall victim to a critical mistake. Call 1 877 602 9900
Fraser MacLean, articled student and son of founder Lorne MacLean, QC writes today’s blog after noting a number of family law clients were confused on several key areas of family law. Fraser MacLean hopes this will save BC family members going through a separation from making costly mistakes. Fraser can be reached directly at Tel 604 697 2820
Top 5 BC Family Law Myths – Myth #1 – Thinking you have to be separated 1 year before you can start your BC divorce proceeding.
The Divorce Act requires that married couples must be separated a minimum period of one year before you can obtain an Order for divorce. BUT this does not prevent you from immediately starting your divorce proceeding and obtaining immediate relief including child custody, parenting time, guardianship, child support, spousal support and property division as well as key personal restraining and property protection orders. You can start your BC family law action on the very date of separation and an experienced lawyer at MacLean Law can start negotiations to settle custody, parenting time, guardianship, child and spousal support, and property division issues immediately. One of our lawyers can be in court for you within days of when your separation occurred. The one year period begins to run on the date of separation, not the date that you start the family proceeding.
Top 5 BC Family Law Myths – Myth #2 – Thinking both spouses have to agree to divorce to have the divorce granted.
This is incorrect. Only one spouse needs to want a divorce for it to be granted. No agreement by the other spouse is required. A court can grant a divorce on application by a spouse or both spouses on the grounds that there has been a breakdown of the marriage which is most often is on grounds of being separate and apart for 1 year. This is defined in S. 8(2) of the Divorce Act:
Breakdown of marriage
(2) Breakdown of a marriage is established only if
- (a)the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
- (b)the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
o (i) committed adultery, or
o (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Top 5 BC Family Law Myths – Myth #3 – Thinking child support ends when my child turns 19.
This is not true. A parent’s obligation to pay child support often continues after the child has reached the age of majority (age 19 in BC). This can occur in instances where there is an adult child in University, or where an adult child by virtue of disability or illness is unable to attain the necessities of life. Generally, the courts accept that adult children should be entitled to pursue a reasonable level of post-secondary education, which is important to a child’s long-term well-being. In the BC case of Wesemann v. Wesemann, a four-step test was adopted for determining child support for a child over the age of majority. At paragraph 9 the court stated:
Decide whether the child is a “child of the marriage” as defined in the Divorce Act? If s/he is not, that ends the matter. (Contact our top rated family lawyers to see if your child remains entitled to support)
Determine whether the approach of applying the Guidelines as if the child were under the age of majority (“the usual Guidelines approach”) is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach.
If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies.
If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Top 5 BC Family Law Myths – Myth #4 – Thinking child support isn’t payable in shared child custody and parenting time regimes
This is rarely true because a variety of child support approaches can be used in a shared parenting situation which is defined as cases where parties have 50/50 of the total time in a calendar year OR when each party cares for the children over 40% of the time. So even in cases of 60/40 parenting time section, 9 of the child support guidelines applies. Once the 40% threshold is met (this is often a painstaking and hotly disputed analysis), the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The goal is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation. The total cost of raising children in shared parenting time is often greater than in situations where there is sole parenting time. The British Columbia Court of Appeal in the case of B.P.E. v. A.E., 2016 BCCA 335, approved of the set off approach where each parent is notionally assumed to pay full child support to the other with the lower earning spouse’s support amount being deducted from the higher earning spouse’s support amount. Some cases have made no set off reduction at all to avoid a cliff effect!
Top 5 BC Family Law Myths – Myth #5 – Wrongly using a business owner’s personal tax return to calculate appropriate spousal and child support
This myth can prove financially fatal to the spouse and children who are entitled to support. Unfairness can result in the calculation of income for support purposes if a spouse who controls a family business draws out only $50,000 at the time of a support application from a company earning annual profits of $1,000,000. While their personal tax return shows a mere $50,000 there is another $950,000 being kept in the family company. Section 18 of the Child Support Guidelines addresses this issue.
Because business owners and self-employed professionals can decide what profits to take out of a corporation and in what form ( dividends or salary) the Guidelines allow but do not require, up to the full inclusion of all pre-tax income of a corporation. Courts must consider evidence of legitimate business needs to determine the appropriate amount of pre–tax income to be included in Guideline income.
Alternatively, A parent who works for a family business and intentionally takes a lower salary may have income imputed to him or her in the amount of the true market value of the services he or she provides to the family business (L. (J.) v. L. (B.), 2015 BCSC 2052).
Further to ensure personal expenses are not deducted as business expenses to artificially lower the true income of the business owner, the burden of proving the reasonableness of deductions from business income, whether in the context of self-employment or within a wholly-owned corporation, lies with the spouse making the deduction.
Also, many family clients are unaware that an individual has more after-tax income available if he or she receives a dividend rather than a salary of the same amount.
Sections 21 and 22 of the Guidelines impose an obligation on each parent to disclose financial information; s. 23 gives the court a broad discretion to draw an adverse inference if a parent fails to make the necessary disclosure.